Perspectives on where our world is heading from a vantage point in Denver, Colorado.

17 August 2011

Inter-American Commission On Human Rights Rules In Castle Rock Case

The Inter-American Commission on Human Rights has ruled that the Castle Rock, Colorado police violated the human rights of a Colorado woman when they refused to enforce a temporary restraining order that was in force, when she informed them that there was a crisis, which made it possible for her husband to kill their three children.

If it sounds familiar, it should. The U.S. Supreme Court took up the case and held in 2005 that notwithstanding language in the statutes of Colorado that seemed to create an affirmative duty for police to act to enforce restraining orders that there was no affirmative duty for police to take any action protect anyone (at least anyone who is not in their custody). This, in turn, because it presents the issue so clearly, has profound implications for the theory of the role of the state in society in the United States. For example, interpreting a right to bear arms under the Second Amendment to the U.S. Constitution as creating an individual right to armed self-defense and access to the means to do so, in at least some core circumstances, makes much more sense in a society where the state has absolutely no affirmative obligation to protect people from private violence, even though it often strives to do so, than it does in a society where it is at least possible to use the Courts to impose such a duty on the state when there is a well founded, judicially established reason to fear violence against a particular person from another particular person, and the state enacts laws that purport to compel law enforcement to implement that judicial determination.

Of course, the fact of the matter is that once the U.S. Supreme Court has ruled on an issue, that a ruling from the Inter-American Commission on Human Rights does very little more than add a fine print bullet point to the political debate that doesn't mean much to anyone but internationalist liberals, put a little dent in the already minuscule international tourist trade to Castle Rock (it does have a number of foreign counsels in residence which may help explain why this avenue was even considered), and to provide some sense of moral righteousness to the aggrieved widow, who was surely deeply betrayed by the law enforcement of Castle Rock, whether or not she had a legal remedy for losses as a result of their inaction.

Simply put, most of the time, international law means squat in the United States. More often than not, treaties are declared not to be self-executing, in areas as diverse as treaties we have signed relating to child prostitution to the right to diplomatic assistance for foreign nationals in criminal cases (we have been internationally condemned by international human rights courts before for executing people who were denied those rights), to extradition treaties, for example. We are happy to condemn other countries for violating treaties, but take a more cavalier attitude towards their domestic enforcement than almost any other non-rogue nation on earth.

On the other hand, it is worth considering the context that causes the Inter-American Commission on Human Rights is inclined to take police inaction more seriously than U.S. courts.

In most of Latin America (and indeed most of the world), law enforcement is not primarily vested in the hands of locally elected local government officials, and there is a long history of human rights violations through systemic police indifference that amounts to implicit endorsement of vigilante or organized crime sanctioned violence against private individuals. It is a lot easier to buy off or politically win over police in that kind of system than in the United States and this kind of corruption has a long history.

In contrast, where there have been episodes in American history where this has been true in limited regions, like the Reconstruction American South where police allowed lynch mobs to operate with impunity, and police in Prohibition era Chicago who looked the other way from bootleggers, in the vast majority of the 21st century United States, over eager action directed at suspected lawbreakers by law enforcement, rather than law enforcement inaction, has been the predominant problem. Usually, cops are much more likely to face internal discipline for cowardice than they are to face internal discipline for using improper means to attempt to stop lawbreakers (with the principal exception of violations of the law by members of the law enforcement community itself).

Even in the Castle Rock case itself, no one seriously puts this tragic case in the context of a pervasive, organized, but impossible to establish, conspiracy against the widow or children in question with the intent of allowing the husband to carry out a crime. They may have not taken domestic violence, in general, or this particular domestic violence case, very seriously. They may have been lazy. They may have been incompetently bad at prioritizing their resources. They may have negligently screwed up and miscommunicated. But, no one in the Castle Rock law enforcement community thought that those children deserved to die, or would have refrained from action had they been more prescient and better organized, or was too afraid of the consequences of taking action against the husband to seriously consider trying to arrest him. Their acts may have been biased by a generalized misogyny and skepticism of a state imposed model for dealing with domestic violence that they didn't believe in, but it was not similar in kind to the common attitude of law enforcement officials in the Middle East that honor killings are justifiable homicide even if the laws on the books say otherwise.

Whatever their reasons for inaction in this case, it is highly implausible that the Castle Rock police were either bought off or intimidated by threats of harm to themselves. Nor, it is plausible to believe that they personally believed that an estranged husband has a right to kill his children by virtue of being their father as the law of the Roman Empire did. Police and district attorneys in Douglas County, Colorado (of which Castle Rock is the county seat) may very well effectively ignore the full letter of recent legal enactments like the elimination of the marital exclusion in Colorado's rape laws and may be willing to look broadly at what constitutes acceptable physical interaction between lovers or discipline of children, but they have no moral doubt that shooting one's own children with a firearm is unequivocally wrong.

The prejudices and biases that were present in the Castle Rock police department were disorganized reality filters that are typical of the conservative, overwhelmingly white, affluent bedroom community electorate who elected the people who ran the city that employed them. The fact that this mother was a Hispanic domestic violence victim surely did contribute to the overall evaluation that influenced the weight that the Castle Rock police gave to the situation. They would not have treated a plea by the Mayor's daughter related to a temporary restraining order against a man who was a stranger to her similarly.

But, this was also not even the more common American experience of a police force so defeated that it gave up on trying to figure out who is right and who is wrong is some big city ghetto where gangs contest for control of every street corner, most people distrust the police as much as they distrust the criminals, they are drastically underfunded and outgunned, and the vast majority of the crime seems to be directed at fellow criminals.

Indeed, even that situation has a notable feature that distinguishes it from the American norm of political accountability working to establish law enforcement responsiveness that is so much less routine in much of the rest of the world. Low income neighborhoods in big cities are the places where the disconnect between the residents of the neighborhoods that police are charged to enforcing order in and the electorate to whom their bosses are politically accountable is greatest. Low income neighborhoods in big cities have the lowest voter turnout rate, and as a result, voters from other neighborhoods in those cities dominate the political process.

Britain, which was recently struck by large scale riots in low income neighborhoods, is effectively one great big city in this respect. The local police are effectively responsible to the Home Secretary in London, not the local town council. There are local appointed consultative bodies that inferface with British police, but the local Mayor isn't the one who hires and fires their boss, appropriates their funds and writes their paychecks.

Conversely, it is little surprise that rural Americans, who elect sheriffs and local police and district attorneys in political units with very low populations, are demographically stable or slowly shrinking, and are extremely homomgeneous in values and demographics, tend to be the least concerned about legal limitations on police authority and the most supportive of "tough on crime" stances in the face of other considerations. Their law enforcement officials see eye to eye with them more closely than law enforcement in almost any other political context in the United States, or perhaps even the world.

All of this is a long winded way of saying that while police indifference is always a bad thing, the U.S. Supreme Court wasn't terribly off base, either given the structure of the U.S. political system and legal system, or given the general realities of the American criminal justice system, to see this as a very different kind of issue in our context than it is in the context of the Latin American criminal justice system which forms a backdrop of the bulk of the people involved in the Inter-American Commission on Human Rights which has caused them to conceptualize law enforcement indifference in the face of warnings of private violence as an important category of human rights violation. In their countries, human rights violations have been in one place or another the ordinary and most common kind of law enforcement collusion in human rights violations. The realities of proving that kind of conspiracy for individual victims of these abuses has made a human rights rule that establishes a greater police duty to private individuals who have warned them of threats of private violence through official channels the most sensible way of addressing this problem.

The parade of horribles offered up by the police in the Castle Rock case before the U.S. Supreme Court notwithstanding, it is also not at all obvious that recognizing a state created statute could create a right to some kind of response for law enforcement on pain of civil liability for their inaction in cases where a judge had considered the threat and found it to be real would actually have been the burden claimed. Nobody in the Castle Rock v. Gonzales case was arguing that the police had a strict liability duty to prevent estranged husbands who are subject to restraining orders when they are warned; the argument of Gonzales was that they were mandated by a state law to at least try to enforce a restraining order when the facts that they needed to have were handed to them on a silver platter by the mother of the children rather than blowing it off. One of the main ideas behind the concept of a restraining order is to try to get the police to take a potential threat seriously and to make it easier for them to intervene before a situation gets out of hand. The U.S. Supreme Court didn't have to create a constitutional duty of law enforcement to protect citizens in general, in order to make it constitutional for the State of Colorado to pass a statute that imposed such a duty on police in its own state to do so. But, that isn't what the U.S. Supreme Court did and the political theory it adopted in its actual holding is now central to the nature of the relationship between the state and its citizens in a broad array of areas, and to the most sensible interpretation of future cases such as Heller, the case that recognized an individual constitutional right to armed self-defense under the Second Amendment that federal courts had refused to impose in the most than two centuries that preceded it.